No Second Appeal Below Rs.3000/-?

(By M.R. Rajendran Nair, Advocate, Ernakulam)

In the judgment reported in 1999 (2) KLT 877 (Pariyaram Panchayat v. Damodaran Nair), the second appeal was held to be not maintainable since the amount of the value of the subject matter of the original suit wherefrom the second appeal arose did not exceed Rs.3000/-.

With great respect, it is submitted that this view is not correct. It is not as if that in all cases where the subject matter of the original suit does not exceed Rs.3000/-, no second appeal would lie. According to S.102 of the Civil Procedure Code, no second appeal shall lie from 'suits of the nature cognizable by Courts of Small Causes', when the amount or value of the subject matter of the original suit does not exceed Rs.3000/-. This would mean that if the suit is of the nature cognizable by a Small Causes Court and the value of the subject matter of the suit does not exceed Rs.3000/-, no second appeal will lie, though the suit has not been tried by a Small Causes Court. The reason is that it is the nature of the suit and not the Court in which it is tried that determines the right of appeal. The words 'any suit of the nature cognizable by Courts of Small Causes' mean any suit relating to the subject matter over which Courts of Small Causes would have had jurisdiction if the claim was within the pecuniary limits of its jurisdiction.

In the reported case, the claim itself was for Rs.1000/- and therefore if the suit were of the nature cognizable by a Small Causes Court, the suit itself would not have been maintainable in any other Court. According to S.13 of the Small Causes Court's Act, 1967 save as expressly provided by that Act or any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court. Decree or order made under the provisions of the Small Causes Court Act by a Court of Small Causes would be final and no appeal will lie except in cases of orders specified in clauses (ff) and (h) of S.104 of the Code of Civil Procedure. Under these provisions, an order under S.35A for compensatory costs in respect of false or vexatious claims or defence, and an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the Civil Prison of any person except where such arrest or detention is in execution of a decree alone are appealable.

The original suit which was the subject matter of the second appeal 20/91 was a suit for damages against the Panchayat Executive Officer for having acted in excess of the power conferred on him as Executive Officer of the Panchayat. It was alleged that the defendant cut the branches of certain trees standing in the property of the plaintiff illegally and the plaintiff sustained loss. The counsels were asked to address the Court as to whether the second appeal will lie even when the suit was not a small causes suit. Either side contended that the claim was for damages in respect of an act done by an officer like the Executive Officer of a Panchayat statutorily empowered to cut the branches of the trees hanging over the residential premises of another causing danger to life and property and it will not be a suit of small causes and that second appeal was prohibited as per S.102 of the Civil Procedure Code only from a decree in a suit triable by Courts of Small Causes.

There is an inaccuracy in this contention. The distinction between suits triable by Courts of Small Causes and suits of the nature cognizable by the Courts of Small Causes is borne out. The learned Judge rightly said that the suit need not be cognizable by Court of Small Causes, but it may be only of the nature triable by the Courts of Small Causes. But it was stated that the words 'of the nature cognizable by the Courts of Small Causes' indicate something more than the suit cognizable by Courts of Small Causes and that the second appeal was not maintainable because the amount or value of the subject matter of the original suits wherefrom the second appeal arose did not exceed Rs.3000/-. The learned Judge erred in not holding that the suit was not of the nature cognizable by Courts of Small Causes, as a suit for compensation for illegal, improper or excessive distress, attachment or search, or for trespass committed in, or damage caused by the illegal or improper execution of any distress, search or legal process was a suit excepted from the cognizance of Courts of Small Causes as per Clause 36(k) of the Schedule to the Small Causes Court's Act, 1967 and that a suit concerning an act or order purporting to be done or made by any other officer of the Government in his official capacity was also excluded under clause (3) of the Schedule.

As the suit was not of the nature cognizable by a Court of Small Causes, the second appeal was clearly maintainable.

Nibblers At Nicotine, Beware !

It is No Smoke-Screen

(A critique of Ramakrishnan v. State of Kerala reported in 1999 (2) KLT 728)

(By S. Parameswaran, Advocate, High Court of Kerala)

(I) "What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? If not, when is a citizen morally free to disobey?" A renowed philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the "Ruling" theory in Anglo- American law - legal provisions and economic utilitarianism - and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the State that are prior to the welfare of the majority. Dworkin criticises in detail the legal positivist's theory of legal rights particularly H.L.A. Hart's well-known version of it. He then develops a new theory of adjudication and applies it to the central and politically important issues or cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of Rawl's theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who possess it. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials.

Finally, Professor Dworkin considers that right to liberty often sought to rival and even pre-empt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals.

(II) The theme is that of the Court as both a mirror and a motor- rejecting the development of the society which it serves and helping to move the society in the direction of the dominant jurisprudence of the day. It is said that war is too important a matter to be left to the Generals. Similarly, Court has reason to think that policy matters are too important to be left entirely to the Legislature and the Executive. Tradition gives way slowly, but surely, at the Apex Court and the High Courts.

(III) Justice Holmes, who commended and commanded judicial restraint used to tell his fellow judges that the Constitution was not intended to give the judges a carte blanche to embody their own social and economic beliefs and policies in its prohibitions. The Court should not become partisan of a particular set of opinion which, by no need are held semper unique et abe Omaniburg. (Otis v. Parker 187 US 606 (1908)),

(IV) The authority of the Constitution, its claim to obedience and the force that we permit it to exercise in our law and over our lives would lose all legitimacy if it really were only a mirror for the readers' ideas and ideals. Just as the original intent of the Framers - even if it could be captured in the laboratory, bottled and carefully inspected under a microscope - will not yield a satisfactory determinate interpretation of the Constitution. So too, at the other end of the spectrum, we must also reject as completely unsatisfactory the idea of the empty or an indefinitely malleable Constitution. We must find principles of interpretation that can anchor the Constitution to some more secure, determinate and external reality. But that is no small a task, though the Kerala High Court covertly, and shall I say, courageously, has attempted it.

(V) Patrick M. Garry writes, about the state of affairs in present-day America: "As the 20th century draws to a close, court-room trials in America have become like the great gladiatorial contests of ancient Rome. They are followed, as sporting events are followed, always with a speculation as to who is winning and who is losing, and also has the better lawyer. Yet, in the midst of all the dramatic court room battles, the first causality has been one of the original justifications for conducting such trials: the truth." In a litigious society that America has become, the notion that truth emerges from the Court room has been largely discredited. (Patrick M. Garry," A Nation of Adversaries - How The Litigation Explosion Is Reshaping America," Insight Books, New York, (1997) P.161). Do these not sound a ring of truth in India too?

(VI) "There is a criticism, not entirely baseless or imaginary, that legal thinkers have no respect for legal academics. And all but the most devout seem repulsed by the imperious overweening advent of America's overwrought legalism". ("Laying Down The Law; Mysticism, Fetishism and the American Legal Mind", Pierre Schlag, New York University (1996) 103). These words of an American legal critic are apposite and appropriate to the Indian context.

(VII) Schlag adds "There is no method, no great learning, no illuminating texts, no real craft, no act worthy of the name. There are only great problems." One must say that this is a gross exaggeration. As the author himself admits, criticism of the law is always in the service of the law itself. Luckily, most of our judges understand and appreciate this and do not take criticism of their judgments to their hearts. By law one does not mean the ugly beaurocratic moise that grinds daily in the nation's courts, legislatures and agencies alone.

(VIII) There are noble and ignoble moments in law and it is difficult intellectually to identify their ratios and relations. This realisation, of course, does not abate the pressing need for law.

(IX) Judicial digging and consequent transformation in environment litigation is on the increase. The rationale is that by the very fact of enactment of legislations in respect of environmental and consumer interests, it become a legally protected interest. And by that very fact, the individual or group alleging its violation acquires standing to move the Court. As Schwartz points out, such interests have received importance as a new perspective from the growing movement towards so - called "Participatory democracy". The legal system, like other institutions of contemporary society is seeking to give the citizen a means of making its impact felt more directly on the governmental processes (Schwartz 'Administrative Law', Toranto Little Brown and Rei (1976)).

(X) No doubt, Public Interest Litigation is a revolutionary transformation of the litigating and justicing processes. See what Cappelleti says; "(A) turmoil, indeed, a real revolution, is in progress, in which even the most sacred ideas and themes of judicial law, such as due process and the right to be heard are being challenged..... Such new concepts as 'diffuse rights', 'fluid recovery' and "the ideological plaintiff may admittedly appear dangerous, iconoclastic and confusing. Yet, they reflect the unprecedented complexity of contemporary realities. These new concepts represent a deeply motivated trend of universal dimensions. (Mauro Cappelletti, "Vindicating the Public Interest Through the Court - A Comparatist's Contribution" in Mauro Cappelletti and B. Garth. (Editors), "Access to Justice; Emerging Issues and Perspectives" (1979) Vol. HIP. 513 at P. 564).

(XI) The petitioner should be possessed of pertinent bona fides and recognised attributes and purposes in the area of environment and public health to litigate these issues. The Court has to be saved from being used as a vehicle for vindication of value interests of by-standers. The action and the relief should not be confined to a limited group of persons, but possess a wide geographical coverage for Court to activate itself in pro bono publico litigation.

(XII) "Nothing rankles more in human heart, more than a brooding sense of injustice. Illness we can put up with, but injustice makes us pull things down. When only the rich can enjoy the law as a doubtful luxury, and the poor, who needs it most, cannot have it because its expense puts it beyond their reach, the threat to the continued democracy is not imaginary, but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in, and benefit by, its impartiality and fairness". (Justice Brennan quoted in "Public Interest' Litigation, Dr. S. Hurra (Mishra & Co., Ahmedabad) (1993)) U.S. Supreme Court Justice Brennan's above-quoted famous words rushed to my mind when I read Ramakrishnan v. State of Kerala (1999) 2 KLT 718) delivered by the Division Bench of the Kerala High Court comprising Acting Chief Justice AR. Lakshmanan and Justice K. Narayana Kurup.

(XIII) The decision of the Division Bench on smoking in public places has not come a day too late. To the non-smoking citizens of this State, it brings solace and relief from the evil effects of passive smoking thrust on them by the smokers, who ignore the ban signs in cinema houses, buses, railway compartments and air conditioned restaurants. There is a growing fear among certain sections of the citizens over the expansion of judicial power among our judges which even trenches upon fields occupied by the Legislature and the Executive and that if it goes unchecked, the judiciary may become an imperium in imperio. While these fears cannot be brushed aside lightly as unfounded, the right of a citizen to have equal access to effective justice to vindicate legal rights, whether old or new, whether individual or meta-individual, is basic in any democratic Government. It is the duty of the democratic Government to see that legal rights, duties and entitlements are judicially enforced and public interest litigation is a strategy to safeguard the rights of citizens.

(XIV) The decision rendered by the Division Bench has received an enthusiastic response from a large section of people in Kerala, though one has to admit that there are certain quarters, essentially consisting of smokers, who have reservation about the correctness of the judgment. According to this school of thought, these are matters of policy and, therefore, it is for the Executive and, if necessary, the Legislature to take decision on such matters and the judiciary's function is only to deal with violation of the law concerning this, if any. The judiciary by way of judicial activism is arrogating to itself jurisdiction over areas which fall well within the periphery of policy decisions vested with the Executive. Or to use an American jargon, it is not for the judiciary to deal with polycentric issues like a ban on smoking.

(XV) Perhaps, Ramakrishnan will be received by the nibblers at nicotine, who surge into a spree of smoking with an impetuous abandon and an abominable unconcern, with a collective yawn. Again perhaps, on reflection or second thought, the Division Bench may realise that its stunning assertion was too obvious to merit seminal discussion, for, the Courts cannot change the locus of ultimate legal power in the country. But, we must remember that great precedents have their roots in the minds and hearts of ordinary people and they need time to grow.

(XVI) The arguments in Ramakrishnan's case were not characterised by crabbed legal reasoning or bogged down in citations and counter - citations of dusty precedents. The lawyers did not seem to realise the scope of the issue they were addressing. They were like a small musician playing Beethoven symphony on a banjo. But the Division Bench would see to it, with Acting Chief Justice AR. Lakshmanan and Justice K. Narayana Kurup on it that the appropriate orchestration was provided and that is exactly what happened.

(XVII) The judgment delivered by Justice K. Narayana Kurup of the Division Bench comprising Acting Chief Justice AR. Lakshmanan and himself has dealt a lethal blow to nibblers at nicotine. It is after a splendid and penetrating analysis of the problem created by smoking in all its ramifications, and the inefficacy of the statutory warning inscribed on the cover of the cigarette packets, that the learned Judges have delivered this judgment.

(XVIII) The Division Bench, however, has given an unforgettable discourse on the pernicious effect of (un?) popular action and conduct in a free society. It demonstrated that we must be eternally vigilant in our attempt to check conduct that we loathe and believe to be fraught with death.

(XIX) The Bench in Ramakrishnan says; "Since smoking is a public nuisance, it can be more effectively abated by invoking S.13 3 Cr. P.C." and then goes on to extract the section. It continues, "If such an order is passed by the Executive Magistrate, any person who disobeys the order is guilty of the offence punishable under S.188, IPC......... Offences under S. 188I.P.C. is cognisable as per first Schedule of Cr. P.C. Therefore, after the promulgation of an order under S.133(a) Crl. P.C, if any person is found smoking in a public place, the police can arrest him without a warrant. The only condition is that the order is duly promulgated by the Executive Magistrate. The Executive Magistrates have a duty to promulgate such an order. "(Emphasis supplied), Relying expectedly and, perhaps, rightly, on Ratlam Municipality (AIR 1980SC 1622), wherein that active and inveterate iconoclast on the High Bench, Justice Krishna Iyer gave the clarion call for pro bono publico action, Justice Narayana Kurup, speaking for the Bench, adds, "When there existed a public nuisance, this Court could require the Executive under S.133 Cr. P.C. to abate the nuisance by taking affirmative action on a time-bound basis. Otherwise, it will pave the way for a profligate statutory body or pachydermic governmental agency to defy the law by willful inaction." With respect, neither rationale nor logic informs or supports this observation. In a Republican democracy like ours, we have rule of laws and not rule of judges; Courts cannot arrogate to themselves Executive or Legislative functions and duties as they are not representative of the popular will and not subjected to periodical tests of acceptability or credibility by electoral processes. Perhaps, emotion got the better of logic and legality while saying so. But, see the subsequent words of the Bench: "Therefore, when the Magistrate has before him all the information and evidence which disclose the existence of a public nuisance and on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act. Thus, his judicial power shall, passing through the procedural barrel fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The responsibility of the Magistrate under S. 133 Crl. P.C. is to order removal of such nuisance within a time to be fixed in the order. This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding". The words underlined (emphasised) have a ring of substantive truth and solemnity and sobriety, while the trigger-happiness advised and advocated by the Bench bring to out mind unpleasant memories of the outmoded Maoist dictum that power flows from the barrel of a gun!

(XX) It is, perhaps, an exaggeration - A pardonable exaggeration at that - to say that the Kerala High Court through activist Judges like Acting Chief Justice AR. Lakshmanan and Justice Narayana Kurup has set the theme for the 21st century jurisprudence. The Division Bench in Ramakrishnan showed how traditional principles and techniques and age-old statutory provisions could be pressed into service to affect a sea-change in the relationship between the law and the individual rights of citizens. The Bench, to borrow the expression of Roscoe Pound about Justice Benjamin Natham Cardozo, has shown that it knows the tools of its craft and how to use that. It is innovative to use traditional judicial techniques to adapt the law to society's changing requirements, as has been done in the present case.

(XXI) Reasoning by analogy and with reference to technical details, the Bench showed how the existing law could be adapted to new ideals and by a masterly judicial technique, the Court made the emerging law to appear to be a logical product of established doctrines and the Statute law, and made a blend of both continuity and creativeness.

(XXII) In Ramakrishnan, the instinct was to fill the gaps or ambiguities in the Statute Law with judge-made Common Law, rather than to search first for guiding principles in the structure and design of the law laid down. The Constitution, they emphasise by action, was not just and overly on the private law of property and contract. The Court, though, perhaps, with extreme enthusiasm, and exceeding the limits of self-imposed judicial restraint, which is the hall-mark of a good judge, embarked upon an exciting, though necessarily exalting, adventure with judicial review. The Judges did not quite succeed in making discrete starting points for creative judicial elaboration. They, perhaps, studiously ignored what a civil law approach would have kept in view; that the Constitution is not only a charter on rights, but a design for government which places important limits on both judicial and legislative lawmaking. The Indian citizens will be deprived of having a say on how they want to order their lives together. It will also lead to the loss of skills of self-government.

(XXIII) Judge-made law is ex post facto law and, therefore, unjust, according to some legal thinkers. An act is not forbidden by the statute law, but it becomes forbidden by judicial consideration and interpretation. The legislature did not effect this, for, the Constitution did neither permit nor prohibit it. But, on occasions, the judiciary usurps, Legislative and Executive functions. It not only usurps, but runs riot beyond the confines of Legislative power. Reasoning is pleasing to the unsophisticated intellect, but the reason adopted by judicial legislators is sublimated perversion of reason which bewilders and perplexes and plunges its victims into mazes of error. They build up a whole system of law without the authority or consent of the Legislature. So go the arguments of these thinkers. But, intellectual and inquisitive energy combined with an awesome capacity for convenient inaccuracy may sometimes produce a good deal of the original law, one must realise and recognise.

(XXIV) The Bench has inquisitively delved deep into the medical and scientific aspects of smoking and its evil effects. A keen judicial application of the mind and an anxiety to do justice to the hapless and helpless (and hopeless?) non-smoking citizens of the State are running right through the judgment. The opinion is written for the Bench by Justice K. Narayana Kurup, whose present judicial exercise in public interest is not a mere flash in the pan. In the cases of running of private buses in Thiruvananthapuram city, mosquito eradication in Kochi City and the depreciable self-seeking practices of retired judges, Justice Kurup has displayed remarkably bold and independent thinking and deployed innovative techniques with regard to his judgment. See Nixon v. U.O.I. (1998 (2) KLT 712). I need only quote with approval and approbation the following words of a legal academic commending Kurup, J. on this:-

"The judgment rendered by Justice K. Narayana Kurup of the Kerala High Court in Nixon v. U.O.I, is conspicuously truthful, refreshingly forthright and aggressively bold. It is only once in a while that one comes across such sensible discourse on sensitive, but vital, topics of current importance. It assumes importance in other respects also. Here is a judge who writes on the sporadic forays into the wild world of politics by his former colleagues. Every word he employs signifies his agony. Every thought he expresses is tinged with the concern the judge has for the reputation of the institution of which he is an essential part. This uniqueness of the judgment calls for a detailed examination of the different contours of the topic Justice Kurup has dealt with". (Dr. K.N. Chandrashekara Pillai "A Comment on Nixon v. U.O.I., Academy Law Review, Vol. 21, Nos.1 & 2(1997), P.237.)

(XXV) It is not for the first time that pro bono publico law suits expressing grave concern over acts and things dangerous to public health are coming up before Courts. In T. Vasudeva Pat v. U.O.J. ((1990) I Karn. L.J. 403), in a Writ Petition under Art.226 of the Constitution seeking for direction to prevent the spread of AIDS by blood donors, Justice Chandrakantha Urs observed that the reliefs claimed were couched in vague terms that no materials were placed before the Court to call for such directions, that there was no breach of statutory duty pointed out by the petitioner and that the Court cannot assume to run the Health Department of the State by issuing the directions sought for, and dismissed the petition as mis-conceived.

(XXVI) In sharp distinction to this approach, the Kerala High Court acting on a public interest litigation by Niyamakendra directed the State Government to issue instructions for the use of disposable syringes in all blood banks and hospitals in order to safeguard the interest of AIDS patients (Niyamakendra v. State of Kerala & Ors. - order dated 24.8.1992 in O.P.No.9814/1992).

(XXVII) M.C. Mehta, the inveterate and indefatigable P.I.L. lawyer, tiled a Writ Petition under Art. 32 of the Constitution of India before the Supreme Court complaining of the danger of radiation in the Gama Chambers of the Atomic Energy Regulation Board located in the Jawaharlal Nehru University, Justice R.N. Misra and O.L. Oza granted relief including protective steps to be taken and directing the University to pay Rs.1 lakh each and the premium for insurance to the concerned employees. (See Singh Gayatu, Anklesaria Kerban, Gonslave Colin (Edrs). The Environmental Activists' Handbook', Colin Gonsalve Bombay (1997) p. 291).

(XXVIII) One has, however, to appreciate that when the Legislature and the Executive have failed in a democratic system like ours and a Republic like India, people can pin hope only on the judiciary, the third arm of the Government. Though the judiciary cannot, according to this author, claim to be an acme of perfection or personification of immaculate excellence, by and large the judicial institutions in the country have acquitted themselves well in the discharge of the duties assigned to them in the Constitution of India. Further, in spite of the fact that notices prohibiting smoking are displayed inside buses, railway compartments, cinema houses and even in air-conditioned restaurants, these are violated with impunity and impudence by the smokers, and the authorities concerned keep their eyes shut and refuse to take any preventive or punitive action. Recently, this writer had an occasion to point out to the owner of a petroleum outlet in the city that the driver of the vehicle who brought the tanker lorry to deliver petrol was holding a lighted beedi in his hand. The owner did not take it seriously. Similarly, in the railway compartments, the inconvenience and the suffocation felt by the fellow - passengers are totally ignored by the smokers, who go on a smoking spree, once the train starts moving.

(XXIX) Environmental protection litigation explosion, according to critics, has become a social scourge in India and is threatening Indian economic health. Although the disdain for this litigation is fairly widespread, the perception of its pros and cons is narrow and native. This generates an edgy, uncompromising confrontational climate, characterising Indian society. This article does not seek to explore, one ever-arching explanation for galloping judicial activism in the context of the recent Kerala High Court judgment. Whether the decision will breed an adversarial culture by fuelling a society which is obsessively focused on a self-centred individualism is anybody's guess. The decision, it can, however, be said, dominates public attention by instilling a continual fear of being slapped with a criminal charge by the police, to which accepting bribes is not anathema.

(XXX) It is also necessary to sound a note of caution against the Court suffering from a not-so-magnificent obsession - with public interest litigation. As the Hon'ble Supreme Court rightly emphasised in Shri. Sachidanand Pauley v. State of West Bengal (AIR 1987 SC 1136); "There is the need to restraint on the part of public interest litigants when they move the Courts, P.I.L. has now come to stay, But one is led to think that it poses a threat to the Court, and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the P.I.L.'s the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions".

(XXXI) As Schlag says "Law demands the belief that there exists some techniques in faculty that enables decision-makers to balance incommensurable goods (for example, the flag against the First Amendment) in order to reach correct conclusions. Law demands the belief that such balancing decisions are inter-subjectively valid among a sufficiently large community (namely, citizens) or a sufficiently enlightened community, (namely, the legal profession), that the decisions are legitimate. (Piere Schlag, "Laying Down the Law" P.6). The opinion delivered by Justice K. Narayana Kurup of the Kerala High Court on his own behalf and on behalf of Acting Chief Justice A.R. Lakshmanan assumes relevance in this context.

(XXXII) Public interest litigation has become the new Kerala frontier, and few cultural symbols or myths carry as much importance to litigation-minded Keralaites as this frontier. On the litigation frontier, practically any issue can now have its day in a Court.

(XXXIII) If being an effective judiciary means making the indisciplined exercise of power palatable by garnishing it with rhetoric and massive learning, the Kerala Bench is a Hall of Fames. The sudden popular muttering that have greeted the decision in Ramakrishnan have luckily not turned into a full-throated row.

(XXXIV) Dr. S.N. Jain, former Director of the Indian Law Institute said, "If carefully and prudently used, the P.I.L. has great potential in correcting the administrative wrong, but if liberally and indiscriminately used in all kinds of cases, it may turn into an engine of destruction". (S.N. Jain, "Standing and Public Interest Litigation')

(XXXV) In fine, let us console ourselves with the words Rabindranath Tagore; "If you shut your doors to errors, truth will be shut out."

Ramakrishnan - Guardian Angel for Thieves

(Salim Kambissery, Asst. Public Prosecutor (Gr.l), Thiruvalla)

One Ramakrishnan was found by the S.I. of Police in the Verandah of a closed shop. He did not satisfactorily explain his presence there at the dead of night. Sensing suspicion about a possible theft he was arrested and later prosecuted invoking S. 48(c) of the Kerala Police Act and it ended in conviction and sentence of imprisonment for fifteen days. Quashing the conviction and sentence our Honourable High Court through a Single Judge in Ramakrishnan v. State of Kerala, 1991 (1) KLT870 observed.

"The section, it appears, applies to persons who intend to commit an offence and has made preparations therefor under cover of darkness. Merely because a person was found between sun set and sunrise in any dwelling house or other building or on board any vessel or boat, without being able satisfactorily to account for his presence there, an offence under S. 48 cannot be said to have been committed. Besides physical presence, in the premises mentioned in sub-section (c) of S. 48, the prosecution must also show that the person had taken precaution for concealment and also made preparation for committing an offence. The question whether he had or not satisfactorily explained his presence, is not a matter to rest only on the subjective satisfaction of the officer who apprehends him".

It is respectfully submitted that the interpretation given to S. 48(c) of the Act by His Lordship does not seem to be correct. On the other hand it is against the Legislative intention and the object sought to be achieved by the said provision. The section nowhere postulates intention of the accused. Intention is what intention does. Devil knoweth not the mind of man. The above provision does not insist the prosecution to establish that the accused had taken precaution for concealment and preparation for committing an offence. True, if these things are established it will ensure the genuineness and truthfulness of the prosecution story. What the prosecution is expected to fulfil to base a conviction under S. 48(c) of the Act are the following viz.

1. Accused must be found between sunset and sunrise.

2. He must be found as above in any dwelling house, or other building or on board any vessel or boat; and

3. He must be unable satisfactorily to account for his presence.

Nothing more is required to attract S. 48(c) and so nothing more can be read into the statute.

Maxwell on the interpretation of Statute, 12th Edn. P.33, cautions the Judge:

"It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: "It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do". "We are not entitled" said Lord Loreburn L.C. "to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.

In a case (Kelappan v. State of Kerala, 1989 (2) KLT 651) arising under S. 47 of the Police Act four persons - two women and two men - were found in the verandha of a Government High School and they were unable to account for their presence there at that untimely hour. It was contended that S. 47 is attracted only if the ingredients of criminal, trespass as contained in Section 441 of the I.P.C. are fulfilled. Repelling the contention a Division Bench of our High Court observed: (Ibid pp.654-655)

"No criminal intention is required to constitute an offence under S.47 of the Act. A mere entry without reasonable excuse makes out an offence. To constitute an offence under S. 47 of the Act it is not at all necessary to establish that whether such entry was with the intention to commit an offence or to intimidate, insult or annoy any person in possession of the property. Any entry into the premises mentioned under S. 47 without reasonable excuse would constitute an offence under the Act. Though the heading of the Section refers to wilful trespass, a reading of the Section makes it clear that any wilful entry upon the premises mentioned therein without reasonable excuse is an offence. The Act does not define trespass. So long as the definition of "criminal trespass" as defined in the Indian Penal Code is not adopted in the Act, S. 47 cannot be read as to include the ingredients of criminal trespass as defined under the Indian Penal Code. In Chambers 20th Century Dictionary 'trespass' is explained thus: "to interfere with another's person or property; to enter unlawfully upon another's land, to encroach, to intrude". The expression trespass in the heading of S.47 of the Act can only mean unwarrantable intrusion or unlawful entry and it cannot be equated to criminal trespass as defined in S.441of the I.P.C. It is an accepted principle of law that while interpreting a statute, when there is ambiguity about the meaning of a particular section, its meaning must be understood in such a manner that it harmonizes into the subject of the enactment and the legislature's object in enacting it. So far as S. 47 of the Act is concerned there is no scope for any doubt in constructing the section as it is abundantly made clear that any wilful entry without reasonable cause into any public place categorised in that section will constitute an offence. As held in Mohan Lai v. JaiBhagwan(1988 (2) S.C.C. 474) the court has to bear in mind that the meaning of the expression in a section must be found in the felt necessities of the time. But for S.47 of the Act the likelihood of a public building or a public place being misused by anti-social elements in the darkness of the night with impunity cannot be prevented effectively. To hold that the wore "unlawful entry" in S. 47 means a criminal trespass would amount to reading of something which is not in the Act. As the revision petitioner could not give any reasonable explanation for his presence there at the untimely hour, the inescapable conclusion is that he has committed an offence under S. 47 of the Act".

This decision is a classic example of the application of the MISCHIEF RULE of interpretation laid down by Lord Cokewaybackinl584inthe famous HEYDON'S CASE (Co. Rep.7a). While interpreting a statutory provision like S.48(c) of the Police Act the duty of Court is to adopt that construction which will suppress the mischief and advance the remedy. In Smith v. Hughes (1960 (1) WLR 830) Street Offences Act came up for consideration before Lord Parker C.J. That Act penalised prostitutes when attracted attention of passersby by soliciting in the Street. Question was whether prostitutes who attracted attention of passersby from balconies or windows were soliciting "in a street". Answering in the affirmative Lord Parker observed:

"I approach the matter by considering what- is the mischief aimed at by this Act Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes."

Viewed in that manner it was held the precise place from which a prostitute addressed her solicitation to somebody walking along the street became irrelevant. (Indebted to Maxwell on Interpretation of Statutes Supra cited pp. 40-41).

Conclusion

The decision Ramakrishnan v. State of Kerala has misconstrued S.48(c) of the Kerala Police Act and the interpretation of the said provision is not, it is respectfully submitted, correct. So this decision requires reconsideration. Otherwise thieves and anti social elements will, no doubt, take shelter under Ramakrishnan's umbrella who, in turn, will act as their guardian angel.

Sperm Bank's - Legal Sanctity

(K.J. Thomas, Advocate, Irinjalakuda)

The advances of modern medicines have created a new as well as moral problems. One of the most extra-ordinary cases to come before the Courts was that of Carionne, a French woman who desperately wanted a child by her husband. The problem was that her husband is dead.

Carionne had first met Allain in August, 1981. Beautiful, bright, tall, slender and striking Carionne where Allain wassturdy and musculine but quiet. At the very sight, their eyes trapped each other. Their chit-chat and merry-making carried them to Hiltons suite. Allain pulled her into his arms, one hand tangling in her hair as he held her against him, she felt the warmth of his body through thin silk and the lean hardness of him. She felt his lips brush her forehead, then her cheek, then find her mouth with sweetness which sent a sudden shiver all through her. It was like drowning, her lips parted under his and her mind stole to touch his cheek, to feel the silkness of his hair, wet elsewhere. She had never experienced the aroma of a musculine character that she felt her bones seemed melt into his and she wanted nothing so much as to cling even closer to him until she was lost entirely that he had a serious illness which required emergent operation which might leave sterile. He decided to make deposit of his sperm in the bank known Cecos (Centre for the study and conservation of sperm). Allain's condition worsened. The couple married in the hospital, on the eve of the Christmas, Church Choir sang the Karol which thrilled French people but only screaming heard from the house of Allain. Allain died in 1983. Allain had left no written instruction about who has to inherit the sperm. But both his wife and his parents insisted that he had expressed a last wish to have a baby by Carionne. The sperm Bank authorities refused to release the sperm deposit and she approached in August, 1984 a court at Creteil, out side Paris, ruled that the sperm bank must hand the deposit over, with ecstasy, she cried thanking the court and the lawyers.

The case had made legal history. But sadly for Carionne her husband's illness had left him with sperm of very poor quality. Doctors of opinion that for the maximum chance of conception, they must inseminate her with the whole deposit at once-and in January 1985, it was announced that the attempt had miserably failed.

As a side light on the legal complexities, it might be added that a baby would have been illegitimate. Under French law a child must be born within three hundred days of husband's demise, if paternity is to be acknowledged.

Human Element in Rajiv Judgment

(By Justice K. Sukumaran)

1. Eight years back a gruesome tragedy plunged the Nation in an encircling gloom, Rajiv Gandhi was assassinated. A human bomb did if A leader was leaning to receive a poem of a young girl, Kokila. Another girl- Thanu- rushed forth with a garland in her hands and a bomb around her belly. The battery flashed and there was a blast. The blast took a heavy toll. Eighteen bodies went up in smithereens. Many felt doomed to an eternity of sorrow to waste themselves away in an ever running fountain of tears. A case was charged. The trial went on. The verdict was given: twenty six to be hanged. There was an appeal to the Apex Court.

2. A few days before the 8th anniversary of the tragedy, the final verdict of the Supreme Court was pronounced. There were 26 appellants-accused. Court Hall No.9 of the Supreme Court was specially arranged for storing safe and secure, the massive records of the case. A three Judge Bench heard long arguments in the case. Mr. Natarajan, counsel for the accused performed a rare feat with admirable forensic skill. Mr. Sivasubramaniam substantially supplemented the submission. Justice K.T. Thomas presided over the Bench which included Justice D.P. Wadhwa and Justice S.M. Quadri.

3. On 11th May, 1999 the Supreme Court pronounced the judgment. There was consensus about the conclusion on conviction. The dissent in approaches and on the sentence, elicits apprehension and provokes thoughtful responses. The silver line in the dissent is the lusture of human element which illumines it all along the legal lines and the vast factual background, as revealed in the judgment of Justice Thomas. The judgment spans a space of 162 pages, compressed in 380 paragraphs and is couched in elegant style. It has a neat arrangement for the disciplined thoughts.

4. An introductory background is always helpful on such occasions. That is admirably done. The political developments in the two neighbouring countries of India and Sri Lanka and the administrative fallout are brief y but beautifully sketched. A painting with a broad brush!

5. Care has been taken to clear the ground by indicating the direction and dimension of the legal principles, which have close bearing and direct application. The difficult terrains of TADA Act are covered in paragraphs 43 to 94.

6. Confessional statements have special significance under that Act. The complex questions are analysed deftly and reconciled cogently in 15 pages from 84 to 108.

7. Conspiracy is an elusive concept. Confusion can be unfounded when a seemingly simple provisions like S.10 of the Evidence Act dealing with 'things said or done by a conspirator in reference to common design' is to be applied to the facts of a case. The cob webs are skilfully cleared. The legal position is, after compressed discussion, summed up in paragraph 121.

8. A human approach is discernible in Justice Thomas's judgment as regards the approaches in the interpretational exercise. He did not caw an assent to the majority judgment. In some areas, it is a dissentient voice: yet it has the impress of a larger perspective, which heralds for good for any civilization. The clanking of medieval chains is not an unfamiliar sight in the path of justice. As Lord Atkin put it, "the duty of the Judge is to pass through the correct path undeterred". Atkin's dissent in Liversidge's case involving personal liberty became the approved law of England, later, personal liberty had its glorious height when that happened. India has a similar experience. The dissent of Justice Mathew as Judge in Kerala became the foundation of a basic principle in administrative law as laid down by the Supreme Court in Shetty's case. It can be a safe prediction that Justice Thomas's views will be the law of the land in years to come.

9. A more arduous duty was to follow: consideration of the individual cases: it starts at para.122 and terminates at para.353. Conviction was sustained as regards seven. The discussions are worthy of separate treatises. Some obvious aspects cannot be missed even by casual eyes.

10. A tragedy is unfolded in para.122 to 149 of the judgment.

11. Nalini is the most unfortunate among the tragic characters, in one sense. She was the daughter of daughter of Padma. Her brother had a name indicative of unlimited fortune-Bhagyanathan. Almost like Tagore's Subhashini who was mute, Nalini obtained a Master's Degree: and was gainfully employed as Private Secretary of the Managing Director of a business concern of Chennai. In normal course, a life of present pleasures and great expectations. Events took a different course, however.

12. A backlash of frighterning waves of a disturbed area had fatal consequences all along the frontiers of two friendly countries. It corroded the ancient friendship. The ethnic Tamil minority felt insecure. The Heads of the two countries made earnest efforts to find solutions for the vexed problems. The attempted solutions turned out to be worse than the pre-existing problems! The accord of 1987, the movement of I.P.K.F., and the stories of the endless suffering as felt by the people of Tamil origin, the alleged rape of seven girls and the death of 12 persecuted persons and the stories of endless atrocities upset the mental balance of the affected persons. They felt some relief when a political change in India made V.P. Singh the Prime Minister. The happiness arising from a differing and helpful approach of the new Government was, however, short lived. The Ministry did not last long. The same was the fate of the successor government of Chandrasekhar. That led to the elections of 1991. The Congress manifesto was alarming to the LTTE. A threat of the return of IPKF. Rajiv was giving lead to the election campaign. The anxious hearts got choked with anguish.

13. There was a panoramic range of prejudice in the Srilankan island. Condition was most suitable for sowing and nurturing a draconian seed of conspiracy, A conspiracy, not against India, as finally found by the Supreme Court. No one desired to strike fear in the Indian Government or in the Indian people. The conspirators did not desire the death of anyone other than Rajiv. And Rajiv at that time was neither Prime Minister nor even a member of Parliament-facts which had their legal consequences, as lucidly explained in the judgment.

14. There was nothing to show that police was the kill-target True, photographs had been taken of Fort St. George, and of strategic installations in Veil ore like the Jail and Police Head-Quarters. These fell short of the requisite evidence to establish an intention to disrupt the sovereignty of India.

15. The facts proved in the case did not measure up to the requirements of TAD A, the stringent legal measure intended to save the country from a grave danger of an earlier time. There was massive evidence to establish offences punishable under the worst crime of murder and cognate offences. Death penalty, imposable in the rarest of rare cases, would be appropriate in the case of four conspirators, among whom were Nalini and her husband Murugesan.

16. Human element played a prominent part in the conclusion of the Court that "none of the conspirators can be caught in the dragnet of Sub-s.3 of S.4 of TADA". The influence of human element exerted in the reasoning process is evident from the finding recorded in para.43 that the Amendment of TADA Act, in 1993 "was clear climbing down from a draconian legislative fiat which was in the field of operation". The same concern is visible in the reiteration of the legal axiom that confession is a weak evidence.

17. The human approach surfaces again in the course of the discussion on sentence. There again, Justice Thomas has moved along a different path. Not at all slushy. It has well defined contours and a sturdy ground base: Humanism.

18. Justice Thomas was born in the princely state of Travancore. The enlightened territory of Travancore had shown additional consideration towards woman, even when she is guilty of a grave crime. This enlightened mentality of the area is not a recent discovery. The first Prime Minister of India, in his 'Discovery of India', pointedly referred to this glittering territory at a time when many areas in England and Europe were still languishing in illiteracy. The sentiments are presented with fascinating finesse. Rocklike is the logic, embedded in philosophy, principles and precedents. Distilled ideas on human element spread their fragrance. What has emerged from the white heat of discussions is pure gold! "Blessed are the merciful, for they shall obtain mercy" is an enduring Biblical message, Shakespeare elaborated the idea when he wrote the lines

"The quality of mercy is doubly blest........."

Justice Krishna Iyer, handing down the verdict of the Supreme Court in a sensitive case, used a haloed term, 'Karuna of the Law". People of Kerala, particularly the older generation, who had read the poem of Asan under that name, can appreciate in of that virtue. The drops of tears on whi fell from the Buddhist monk on a female face in flames symbolise the 'Karuna'. Justice Thomas, it can be safely inferred, had such an inherited refinement of human element, in his perception and pronouncement. That is amply demonstrated in page 161.

19. Look at the reasons. The primary one is that Nalini belongs only to the 4fh category among the conspirators - those who committed murder, not the hard core nucleus which took the decision to assassinate Rajiv; nor to the group which induced others to join the crime, nor those who joined the conspiracy and induced others as well. The fact that Murugan fell within the category deserving the extreme penalty of law is thereafter adverted to. He was in the leadership layer, and had brain washed his wife to implant hard core prejudice. She had heard that those who attempted an escape from the group had done so at their peril. Infliction of death penalty on Murugan indirectly generates other human problems. Further complications arose as a result of the marriage Nalini had with Murugan and the birth of a girl child while in prison. With the death of Murugan, an innocent girl in her infancy is partly orphaned. If the mother too is to leave her, the child will have to carry sorrow's crown of sorrow, throughout her life; for the hand that rocks the cradle would irretrievably disappear.

20. Disciplined thoughts on the floor of the Assembly, referred to Human Rights and the nobility of humane treatment. The judgment of Justice Thomas has imbibed the soul and spirit of this human element. It reveals a selective sleight of mind that every judge recognises and some possess. That flash and that light in the judgment, add to it a unique charm and a dexterous design.

21. An immemorial custom was in exercise in the Travancore territory. It exempted women of all classes from capital punishment. There was a prohibition against the award of capital punishment to more than one person convicted of the same offence. These customs or local usages had been statutory salvaged when a century back, the Travancore Penal Code was made. The background of such a Legislative mode for the custom is gatherable from the comments given at page 679-81 pages of Regulation and Proclamation of Travancore published in 1928. Here is one extract:

In Criminal case No.27 of 1945 on the file of the Alleppey Sessions Court, 3 persons were found guilty of having jointly committed a murder, but only one of them was sentenced to death, the other two being sentenced to imprisonment for life. The British Resident to whom the proceedings were sent up in the usual course, expressed his opinion that, as all the three were equally guilty of the offence of murder, they should have all being sentenced to death. In reference to the above expression of opinion, the late Sadr Court observed:- ‘We agree that these prisoners (2nd & 3rd) are guilty of the offence of murder as much as the first. In this State, however, it appears to have been a long established practice not to insist on the sacrifice of more than one life for a life taken, whatever be the number of persons who may have been actually engaged in the commission of the deed: and we may add our opinion that the restriction thus established by usage is not altogether unwise. If capital punishment is a necessary evil which modern legislators are endeavouring to mitigate by proposing a substitute of less lawful kind, it may be presumed that the usage of this Sirkar cannot be much at fault in confining the extreme penalty to the chief of a number of joint authors of the crime". The Resident after considering the matter in the light of the above observations stated:- "The Resident is glad that he does not feel bound to recommend any alteration of the Sadr Court's sentence".

"The question of the existence validity of this custom came up for consideration by the High Court in a recent case (Referred case No.5/1071). In that case the Session Judge of Nagercoil sentenced two persons concerned in the same offence to death. The High Court in their judgment observed:- 'According to the custom of Travancore, subject to which we are bound to follow the provisions of the Penal Code, no more than one person could be hanged for the murder of one person'. They accordingly altered the sentence of death passed on one of the prisoners into one of imprisonment for life".

"Thus the council will see there is no doubt as to the existence of the custom. Of course it is not for us to enter into any academic discussion on the justice or propriety of capital punishment. All that we have to consider is whether sufficient reason exists for modifying this long established custom. I do not think anyone will be prepared to contend that this custom has been productive of any practical harm or that it has prompted or promoted crime."

"It may be argued that the amendment is defective, in as much as it lays down no definite rule or direction for the guidance of the Courts in selecting one out of a number of convicted persons for the extreme penalty of the law. There may be cases in which two or more persons may have jointly and equally compassed the death of a man by simultaneously shooting or stabbing him, and medical evidence may show that each separate wound is sufficient to destroy life. The argument, I must confesses not without force. But it appears to me that, though the injury inflicted by each may be equally deadly, there may be other circumstances to guide the judge in performing the undoubtedly very delicated and difficult task of choosing one for the extreme punishment. In almost every case, one person will be found to be at the bottom of the transaction-the promoter, the originator or the organiser-the others being merely his tools. It does not appear that, though the custom has been hitherto strictly followed here, any difficulty has arisen in practice. I think, therefore, I may safely assert that the difficulty apprehended is not of a magnitude to justify a departure from an immemorial and, if I may be permitted to say so, human custom in this Land of Charity".

22. The Travancore Legislative did not overlook the penal provisions of British India. Yet, they did not hesitate the continue the custom of the territory of Travancore. This is evident from the passage. In the Penal Code, death.... the only punishment for the offence of murder. There is the alternative punishment of imprisonment for life, so that it is open to the Judge to sentence a man convicted of murder to imprisonment of life, except where the culprit is already under sentence of imprisonment for life. I believe in British India where there is no such custom, instance of sentence of death being passed on more than one person for the same offence are extremely rare. "That shows that the amendment I propose would not make much practical difference."

23. The custom and its protected statutory form, which saved the women from the gallows and the noose, was the law of the area till its obliteration by the Indian Penal Code in 1951. There was only a solitary occasion when the special treatment accorded to the female segment came up for critical judicial comment. That was i n Parameswaram Pillai v. Sirkar 25 Travancore Law Journal 337 (decided on 18.2.1935).

It is significant that only one Judge, Justice K.K. Chacko, was INIMICAL to the favourism shown to the females. The milk of kindness did not obviously curdle his heart. Here are his own words:

"The authors of the Penal Code felt "that there are some peculiarities in the state of society in this country which may well lead a HUMAN MAN to pause before he determines to punish".... In Justice Thomas, the HUMAN MAN is seen.

The constitutionality of S. 497 was upheld by the Supreme Court in Sowmithri Vishnu's case (1985 Crl. L.J. 302(SQ).

As long as the law in Travancore recognises the necessity and expediency of capital punishment I fail to see any principle of law which would differentiate between the case of a man murderer and a woman murderer. The one is as deserving of death as the other. It is notorious fact that in some cases women can go to lengths from which a man many shrink. Anyway, there is no principle of law or jurisprudence which can draw a line of distinction or difference between the two cases. I am not aware of the law of any country except Travancore where such a distinction between man and woman is made and I see nothing in the conditions prevailing in Travancore which would justify such a distinction. In my opinion, it is time to alter the statute in regard to the subject and place both men and women on the same footing in so far as capital punishment is concerned.

24. Nalini need not altogether be desperate. Law will not be slow to recognise the human aspect which in its expansive horizon would take in maternal care and caress for an innocent infant. That child too can claim "Human Rights"; more so for a girl.

Here is a moving passage from a Full Bench Judgment of Kerala High Court in what is popularly known as the German Doctor's case, Marggarate Maria v. Dr. Chacko & Ors. (1969 KLT 174 FB). The eloquent passage of jurist is extracted. The concluding portion reads:

"The logic of Justice Chacko, however, is neither solid nor strong. Protective discrimination in favour of women has now been accepted almost universally. Johnstone's case in America (1989), contains convincing reasons for a special consideration for women. For centuries, the black people and white women had been subjected to obnoxious oppression in the social plane. The Supreme Court of India did not find anything constitutionally objectionable, when for the identical offence,- even in such a grave one like adultery-, men were dealt with in a harsher way".

The majority judgment which treats Nalini only as yet another person, and ignoring J vital factors of her feminine frame and motherly status, suffer from the same lack of logic as in the case of Justice Chacko's judgment.

25. A President endowed with liberal perceptions, and an activist in his permitted I field, would evaluate that human element in Rajiv Judgment. There was worthy Precedents of sympathetic approach towards misguided idealism. Mahatmaji intervened I and saved K.P.R. from the gallows. Nanavati, the Naval Chief was exempted from the extreme penalty. Communist activist Vasu Pillai in Kerala was spared by a Gandhian Governor when the first elected Communist Government came to power. A sovereign President will not willingly permit his vision to be dimmed or observation obfuscated. There is an escape route when every other legal remedy is lost. Pervasive is the power of the President to act under Art.72 and to commute an extreme punishment invoking that power.